Some plaintiffs’ lawyers have suggested that when a defendant removes a case under the Class Action Fairness Act, it must submit evidence (such as affidavits) with the notice of removal establishing the amount in controversy and other facts pertinent to removal. The Ninth Circuit recently issued a short, unpublished opinion explaining that there is no such requirement. It’s unfortunate this opinion was not published because this is a significant issue on which there is no other circuit-level precedent (although this opinion is freely citable under Fed. R. App. P. 32.1).
In Janis v. Health Net, Inc. of Cal., No. 12-55206, 2012 U.S. App. LEXIS 5767 (9th Cir. Mar. 20, 2012), a federal district court refused to consider evidence the defendant submitted in opposition to the plaintiff’s motion to remand, simply because the evidence had not been submitted at the time the notice of removal was filed. The Ninth Circuit reversed, explaining that a notice of removal is a pleading, not an evidentiary submission:
Nothing in 28 U.S.C. § 1446 requires a removing defendant to attach evidence of the federal court’s jurisdiction to its notice of removal. Section 1446(a) requires merely a “short and plain statement of the grounds for removal.” Moreover, we have observed that “it is clearly appropriate for the district courts, in their discretion, to accept certain post-removal [evidence] as determinative of the [jurisdictional requirements].” Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 690-91 (9th Cir. 2006); see Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) (“The district court may consider whether it is ‘facially apparent’ from the complaint that the jurisdictional amount is in controversy. If not, the court may consider facts in the removal petition, and may ‘require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal.'”) (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995)).
The district court erred as a matter of law and thus abused its discretion in refusing to consider Health Net’s evidence.
Id. at *2-3.